WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20090035 Objection By: Worker Employer: Out of Business Representatives: Worker Hearing Date: July 15, 2009 Attendees: Worker, Worker Representative
ISSUE
The worker objects to the October 8, 2008 claims adjudicator decision confirming a 7% permanent disability for a moderately severe hand arm vibration syndrome (HAVS).
HOW THE ISSUE ARISES
In February 2005, this now 57 year old miner was assessed a 5% pension award for hand arm vibration syndrome (HAVS) or white finger disease (WFN). The worker requested a pension reassessment and in 2006 the award was increased to 7%. The issue was further reviewed in 2008 and the award confirmed.
AUTHORITY
11-01-02 – Decision Making (Weighing Evidence, Natural Justice) 11-01-03 - Merits and Justice 16-01-05 – Vibration Induced White Finger Disease 16-01-09 – Determining Permanent Impairment Due to Hand Arm Vibration Syndrome 18-07-01 - Permanent Disability - Determining the Degree of Disability - Reassessment 18-07-01 - Permanent Disability - Determining the Degree of Disability 18-07-02 - Permanent Disability - The Ontario Rating Schedule
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and considered the evidence and submissions.
The worker representative suggests the pension award as currently calculated, does not adequately recognize the worker’s degree of loss. The representative notes the 2006 testing in Sudbury noted mild to moderate HAVS affecting the hands and moderate HAVS affecting the feet. The representative notes the 2008 assessment in Toronto reported moderate hands and severe feet. The representative suggests this reporting confirmed findings one degree worse than in Sudbury. The representative notes the WSIB medical consultant made no specific comment regarding the condition affecting both the hands and feet and suggests she can only presume the proposed pension award also included the feet.
The representative notes the Ontario Rating schedule (operational policy 18-07-02) allows for a hand amputation rating of 50% - 60%. While the representative does not suggest the worker’s condition would be equivalent to such a rating the representative does suggest that to simply identify the HAVS condition as part of a global assessment is dismissive of the worker’s predicament and is not representative of the impairment of earnings capacity.
The representative suggests it is the mandate of the WSIB to work out an award to reflect the impairment. The representative suggests the recurring claim by the WSIB as to a 10% maximum award for HAVS is not contained in policy yet continues to be referenced by decision-makers.
The representative also referenced several WSIAT decisions which address this issue and notes the leading case identified a profound ambiguity in the WSIB practice. The representative does not suggest it would be appropriate for this appeal to direct the quantum of the award but rather, requests the claim be returned to Operations to address the deficiencies in the case and review the award.
The representative also suggests the recognition of the impairment through a “global” award does not fully recognize the vascular, neurological, and grip strength components of the impairment.
Finally, the representative requests I remain seized of the issue should the worker continue to object to the final determination of the Operations Division.
Testimony
The worker provided testimony outlining the nature of his employment and income following his initial onset of HAVS. The worker reports that following the initial allowance of his claim and pension award in 1985 he continued to work for the accident employment until the mine closed in 1996. He reports earning around $40,000 to $50,000 a year in 1985 and working as a jackleg driller from 1977 to 1991.
He reports his symptoms were getting worse and in 1991 he took a supervisory position. He reports this resulted in a wage loss as he went from earning $80,000 to $60,000. He reports that by the time of the mine closure he was earning $65,000 when good miners were earning $100,000 to $110,000.
The worker reports that after the mine closed he went to work for mining contractors as a working supervisor where he earned approximately $2,000 a week.
He reports that by 1999 he could not take much more due to his feet and he left mining to work at a lumber yard. He reports from 1999 to 2005 he worked in the yard and was a delivery driver for this employer. He reports despite being the senior employee in November 2005 he took voluntary layoff as he realized he would not be able to handle working outside for the winter.
The worker reports he returned to work as a drilling supervisor for a sewer project in April 2006 (earning $100,000 a year) following which this company went bankrupt. He reports he then worked for a mining contractor as a supervisor where he earned $180,000 to $210,000 a year from April 2007 to December 2008.
The worker reports he again took a layoff from this employer in December 2008 primarily as his feet made it impossible to continue with this work. The worker reports he is currently taking a heavy equipment course sponsored by EIC.
ANALYSIS
In assessing the representative submissions and considering the testimony, I do not dispute the representative definition of the intent of a permanent disability award as defined in the legislation. However, I also note the worker evidence indicates highly variable earnings following closure of the accident employer in 1996.
When considering the issue of a pension award reflecting the impairment of earnings capacity, I also consider the legislation to direct that issues of loss of capacity or earnings be based on a workers earnings at the time of accident and as amended through various inflation based adjustments.
In this respect I note that in absolute terms the loss of earnings capacity would therefore be compared to the pre-accident wage which the worker has reported as $40,000 - $50,000 a year. In considering the worker testimony I note that despite ongoing symptoms related to his condition the worker has for significant periods of time at least approximated and on occasion significantly exceeded his pre-accident earnings.
Based on the argument as it relates to insufficient recognition of the impairment of earnings capacity, I find the evidence to suggest that at least in reference to the pre-accident wage the worker has demonstrated the injury effectively did not result in such a loss to at least December 2008. While there are periods of lower employment earnings the two most recent earnings periods in my view require me to consider the prior periods of reduced income to result from the employment circumstances rather than a loss of capacity resulting from the injury.
In fact, in absolute terms, while the worker is not currently earning, the training which he is currently undergoing would in my view carry a reasonable expectation of allowing the worker to at least in the medium term, restore his pre-accident earnings (emphasis added) under this claim.
For these reasons I do not accept the argument the pension award has failed to properly address the entitlement issue simply based on the impairment of earnings capacity.
In assessing the degree of loss, the representative has argued there is a substantive difference as to the degree of impairment between the June 2006 Sudbury reporting (Dr. Cheung / Dr. Pudupakkam) and the June 2008 St. Michael’s reporting. The representative has noted the initial reporting indicated mild to moderate HAVS affecting the hands and moderate HAVS affecting the feet while the later assessment reported moderate hands and severe feet.
In reviewing the reports in detail I note the Sudbury neurology assessment (Dr. Cheung) reported generalized diabetic peripheral neuropathy and suggested the criteria for the neurological component of HAVS was not met. I also note the Sudbury vascular assessment (Dr. Pudupakkam) reported moderate to severe vasospastic disease affecting the lower extremities with mild to moderate impairment of the right upper extremity and very mild impairment of the left. The St. Michael’s hospital summary report dated June 18, 2008 concluded there was moderate to severe vasospasm in the hands and severe vasospasm in the feet. The reporting did not confirm a neurological impairment with these findings being associated with mild to moderate carpal tunnel syndrome and diffuse axonal peripheral neuropathy which may reflect the diabetic condition.
A WSIB medical consultant reviewed the reporting and suggested the June 2006 report indicated moderately severe HAVS and the June 2008 report also indicated moderately severe HAVS. The medical consultant recommended no change in the award.
As noted by the worker representative, the record does not contain a specific description as to the basis for the current award. Entitlement has been extended to include the feet in addition to the hands and the award was increased to 7% in 2006. I presume the increased award was a result of the lower extremity impairment although the record does not confirm this. Additionally, while the global award has been assessed, the record contains no specific information as to the factors considered in arriving at the award. As noted by the representative, the 2006 and 2008 vascular assessments indicate a difference of degree of the vascular symptoms for both the upper and lower extremities. The progression from mild to moderate hand impairment to moderate to severe and from moderate to severe foot impairment to severe from a lay perspective would appear significant.
In terms of the neurological component I note the medical reporting in fact suggests there is no evidence of a neurological impairment as a result of the HAVS. Rather, the worker is identified as suffering from neuropathy arising from a diabetic condition as well as demonstrating symptoms related to carpal tunnel. From the evidence, I presume the HAVS award does not include a neurological component and based on the medical reporting I am satisfied this is appropriate.
The worker has also reported loss of grip and while this may be addressed by the current award there is no specific clarification as to this aspect of the entitlement decision noted on file.
In summary, it would appear the permanent disability award is based on a vascular component for the hands and feet as well as a loss of grip. It would also appear the operations division has not accepted a neurological component. While the award may be appropriate I cannot conclude the specifics of the award have been clearly reviewed or explained to the parties. Accordingly, it would be appropriate for the operations division to further review the award and provide the worker with a detailed explanation as to the components of his entitlement which make up the award, and reconsider the appropriateness of the award. Should the worker wish to appeal further following this action, I remain seized of the issue and the claim may be returned to my attention for further review.
In assessing the objection I consider the objection to at least in part reflect the worker representative view the rating schedule does not adequately reflect the impact of HAVS and effectively under-compensates workers for this condition. In this respect I note there are several prior decisions which have addressed this issue and which the representative has in fact referenced in her appeal. Without reiterating the details of these decisions I am satisfied the permanent disability assessment process (derived from the Taylor/Pelmear classification) appropriately addresses the nature of a HAVS impairment and provides an appropriate basis for assessing entitlement. While the representative does not consider the rating schedule (pension quantum) sufficient for such cases I accept the rating schedule is also appropriate and consistent with alternative impairments. While I recognize the representative argument regarding the purpose of the permanent disability award being to compensate for the impairment of earnings capacity as noted earlier in this decision, the worker’s earnings in this instance do not confirm a significant loss of capacity. For these reasons I am satisfied that in this instance the rating schedule remains appropriate.
As a final note, the medical reporting clearly suggests the neurological symptoms are the result of a diabetic condition and carpal tunnel. From the record it does not appear the carpal tunnel issue has been reviewed for possible entitlement. Noting the employment history, the acceptance of a HAVS condition, and the medical reporting, it would be appropriate for the Operations Division to establish a claim to consider the bilateral CTS, if this has not already occurred.
CONCLUSION
The objection is allowed in part.
The provision of a permanent disability award based on the vascular component of HAVS, the loss of grip, and entitlement for the feet is confirmed. The operations division is requested to review and reconsider the pension award based on these components and provide the parties with a decision addressing the specific details as to the manner in which the award is determined.
There is no entitlement for a neurological component for the HAVS condition. The operations division is directed to review and consider possible entitlement for bilateral CTS arising from the employment.
In the event the worker remains dissatisfied with the pension quantum I remain seized of the issue and the matter may be referred to my attention upon completion of the appropriate action by the operations division.
DATED July 23, 2009
M. Evans Appeals Resolution Officer Appeals Branch